A federal judge has ordered the reinstatement of former President Trump’s “Remain in Mexico” policy, which required border crossers claiming asylum to stay in Mexico while awaiting their hearings, after President Joe Biden ended the program earlier this year.
On Friday evening, Judge Matthew J. Kacsmaryk, appointed by Trump, ordered the Biden administration to reinstate the Migration Protection Protocols (MPP), commonly known as Remain in Mexico, after ending the program June 1 while releasing thousands of border crossers enrolled in the program into the United States interior.
In response, Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt sued the Biden administration for ending Remain in Mexico.
Kacsmaryk, in his ruling, states that the Biden administration violated federal law when the Department of Homeland Security (DHS) ended Remain in Mexico and failed to consider “several of the main benefits” of the program — including that border crossers returned to Mexico who did not have legitimate claims for asylum were returning to their native countries on their own.
“DHS’s first duty is to uphold American law,” Kacsmaryk writes. “It cannot just point at diplomatic efforts as an excuse to not follow the [Administrative Procedure Act] APA or fulfill its statutory obligations.”
By ignoring its own previous assessment on the importance of deterring meritless asylum applications without “a reasoned analysis for the change,” Defendants acted arbitrarily and capriciously. [Emphasis added].
Second, the Secretary also failed to consider the warnings by career DHS personnel that “the suspension of the MPP, along with other policies, would lead to a resurgence of illegal aliens attempting to illegally” cross the border. This is all the more important because the Secretary had the opportunity to see if the warnings were predictive because the Secretary suspended enrollments in MPP on January 20, 2021. From that date until June 1, 2021 when MPP was permanently terminated, the Secretary had the opportunity to observe the ever-increasing number of border encounters. U.S. Customs and Border Protection, Southwest Land Border Encounters. But the Secretary never discussed the rise in border encounters in the June 1 Memorandum or discussed why the warnings by career DHS personnel were misguided or incorrect even as the data appeared to show that the career officials were, in fact, prescient. [Emphasis added].
Kacsmaryk also states that DHS Secretary Alejandro Mayorkas failed to consider the costs on states like Texas and Missouri as a result of ending Remain in Mexico.
“The Court has already found that the states face fiscal harm from the termination of MPP,” Kacsmaryk writes. “But the fact that Plaintiffs suffer fiscal injuries does not indicate the June 1 Memorandum is arbitrary and capricious. Rather, it is the fact that the agency did not consider the costs to the States at all.”
In addition, Kacsmaryk states that the Biden administration violated federal law by when it began releasing border crossers enrolled in Remain in Mexico into the U.S. interior because the law requires DHS to detain or return border crossers.
Accordingly, Section 1225 provides the government two options vis-à-vis aliens seeking asylum: (1) mandatory detention; or (2) return to a contiguous territory. Failing to detain or return aliens pending their immigration proceedings violates Section 1225. [Emphasis added].
Without MPP, Defendants only remaining option under Section 1225 is mandatory detention. But DHS admits it does not have the capacity to meet its detention obligations under Section 1225 because of “resource constraints.” [Emphasis added].
Under these particular circumstances, where Defendants cannot meet their detention obligations, terminating MPP necessarily leads to the systemic violation of Section 1225 as aliens are released into the United States because Defendants are unable to detain them. [Emphasis added].
Kacsmaryk ordered that the Biden administration is “permanently enjoined and restrained from implementing or enforcing the June 1 Memorandum” that had ended Remain in Mexico.
“This injunction is granted on a nationwide basis,” Kacsmaryk writes.
The case is Texas v. Biden, No. 2:21-cv-00067-Z and was filed in United States District Court for the Northern District of Texas.